Copyright law contains many grey areas, especially when it comes to photography. Ownership of a copyright is often contested, as many people may claim original creation of the work. So, when a paparazzi takes a picture of a celebrity without their consent, who owns the copyright to the picture? Well, according to well-established law, the paparazzi. The author of a copyright is defined as “the creator of the original expression in a work.” Therefore, the person taking the picture be the one having rights to it. However, recently, celebrities like Khloé Kardashian and Gigi Hadid have spoken out about this established principle, claiming some kind of ownership over the pictures paparazzi have taken of them. Since then, many news outlets have picked up this proposition, and have asked the following: do celebrities own a copyright over their appearance in a picture?

As a general rule, photographing others without their consent is prohibited by law. One of the exceptions to this rule is photographs taken for editorial use in a public place. Editorial use is defined as “a newspaper or magazine article that gives the opinions of the editors or publishers” based on the concept of fair use in copyright law, which is a defense to copyright infringement. The purpose of allowing the photography of others for editorial use is to promote education and the free press, two pillars of paparazzi work.

Returning to the issue of copyright, celebrities often get in legal trouble when posting a paparazzi picture of them on an online platform. In 2017, Khloé Kardashian was sued by Xposure photos, a paparazzi site that took a picture of Khloé while she was out with her sister Kourtney. According to Xposure, Khloé reposted a picture taken by an Xposure photographer, cropping out the site’s copyright notice. The two ended up settling, but Khloé was vocal about the incident, claiming that this was unfair, as she was the subject of the photo, which was taken without her consent.

Gigi Hadid, an international supermodel and online influencer, had a similar conflict with Xclusive, but instead of settling, she is taking this issue to court. The memorandum in support of Hadid states that she did not infringe on Xclusive’s copyright, as she was the subject of the photograph, and contributed significant creative elements that copyright law seeks to protect. This is interesting, as the memorandum may be claiming that the photograph was a joint work between her and Xclusive.

In order for a copyrighted work to be joint, it must be prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. Hadid claims that her creative choices, such as posing for the camera or choosing a flattering outfit, should be considered a preparation of the work.

This is an interesting and novel argument in copyright law, and would likely rewrite the tests long used in courts to determine who owns rights to a paparazzi picture. Meanwhile, celebrities may counter potential lawsuits from photographers by including the photographer’s copyright notice on the pictures they post on personal social media accounts, or by asking permission from the photographer. Moreover, if a public figure has been photographed against their will on their private property, they may be able to sue the photographer, and obtain rights over the picture.

If you believe you have rights to a photograph of yourself taken by someone else, our firm has the resources to help. We can guide you through your potential rights in relation to the picture, as well as possible legal avenues that you should take to ensure that your copyright interests are fully protected.